Justice Alito's Inexcusable Rudeness

Supreme Court justices Samuel Alito and Sonia Sotomayor before the State of the Union Address in 2010. (Charles Dharapak/AP)

I suspect that the cause of cameras in the Supreme Court suffered a blow on Monday. I am glad the nation did not see first-hand Justice Samuel Alito's display of rudeness to his senior colleague, Justice Ruth Bader Ginsburg. Because Alito's mini-tantrum was silent, it will not be recorded in transcript or audio; but it was clear to all with eyes, and brought gasps from more than one person in the audience.

The episode occurred when Ginsburg read from the bench her dissent in two employment discrimination cases decided Monday, Vance v. Ball State University and University of Texas Southwestern Medical Center v. Nassar. In both cases, the Court majority made it harder for plaintiffs to prevail on claims of racial and sexual discrimination. The Nassar opinion raises the level of proof required to establish that employers have "retaliated" against employees by firing or demoting them after they complain about discrimination; Vance limits the definition of "supervisor" on the job, making it harder for employees harassed by those with limited but real authority over them to sue the employers.

The Vance opinion is by Alito, and as he summarized the opinion from the bench he seemed to be at great pains to show that the dissent (which of course no one in the courtroom had yet seen) was wrong in its critique. That's not unusual in a written opinion; more commonly, however, bench summaries simply lay out the majority's rationale and mention only that there was a dissent. (Kennedy's Nassar summary followed the latter model.)

After both opinions had been read, Ginsburg read aloud a summary of her joint dissent in the two cases. She critiqued the Vance opinion by laying out a "hypothetical" (clearly drawn from a real case) in which a female worker on a road crew is subjected to humiliations by the "lead worker," who directs the crew's daily operation but cannot fire or demote those working with him. The Vance opinion, she suggested, would leave the female worker without a remedy.

At this point, Alito pursed his lips, rolled his eyes to the ceiling, and shook his head "no." He looked for all the world like Sean Penn as Jeff Spicoli in Fast Times at Ridgemont High, signaling to the homies his contempt for Ray Walston as the bothersome history teacher, Mr. Hand.

The offense against decorum is greater when the object of scorn is a woman 17 years his senior, one who is acknowledged even by most of her critics to have spent a distinguished career selflessly pursuing justice in the precise area of her dissent--gender equality in society in general and the workplace in particular. Her words are as worthy of respectful attention as were his.

I found it as jarring as seeing a Justice blow bubblegum during oral argument.

A Justice of the Court lives his life in a swaddle of deference most of us cannot imagine. It is not too much to ask that, in return for this power and privilege, he or she should act like an adult.

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